Comment: State must bolster poorly funded public defense system

Sixty years after the Gideon decision, funding and support for the right to counsel is failing in Washington state.

By Tarra Simmons and Jason Schwarz / For The Herald

When Clarence Earl Gideon wrote from a Florida jail that he had been deprived of his 6th Amendment right to counsel at his criminal trial, he set in motion a chain of events that would change American law and culture.

Gideon v. Wainwright, decided March 1963 by the U.S. Supreme Court, requires the government to provide lawyers at public expense to the accused facing jail or loss of liberty.

Now, 60 years later, Washington, like other states, is at a public defense crossroads where the very promise of Gideon is threatened unless we take collective action. Next door, in Oregon, the public defense system, faced with overwork and underfunding, collapsed, resulting in hundreds of criminal cases being dismissed. If such a crisis were to occur in Washington it would likely affect someone you know; more than 70 million Americans have been convicted of a crime; 1 in 3 families will have a family member with a criminal record; nearly half of Black American males and 40 percent of white males will have been arrested by the age of 23. With strong leadership and public support, Washington can learn from Oregon’s missteps and assure that our public defense protects those in need of counsel.

Today public defenders are not just lawyers, but a team of professionals representing the accused, including social workers, paralegals, legal assistants and investigators. They represent parents in hearings where the state is attempting to take away their children, children in At Risk Youth petitions, and ill people whom the state is seeking to involuntarily commit to a mental hospital. They are on-call 24 hours a day to speak to arrested youth, and they represent people in criminal and civil post-trial work.

Public defense is facing a crisis. The quantity of work confronted by today’s public defenders is unlike that faced in prior generations, and the workload is mounting. Caseload standards first developed in 1973 no longer accurately reflect the work because each case is taking longer. The standards were drafted when public defenders didn’t have to view hours of body camera footage, review years-worth of data from witness’ cell phones or respond to complex forensic and toxicology reports. Increases in homelessness, decline in timely mental health services, and changes in the law have added complexity and increased pressure to the work.

Unlike public defense, prosecutors, police and courts receive significant state and federal dollars to defray the costs to local taxpayers. Local governments determine the way public defense is delivered and funded. Of the estimated $200 million spent locally on public defense in Washington in 2021, only $12 million was provided by the state. As a result, public defense is sometimes seen as a disproportionate draw of local resources, while still comparatively underfunded. Unequal allocation of resources by local jurisdictions results in justice by geography for the accused

The Oregon public defense system recently buckled under similar pressure. After years of underfunding and understaffing Oregon’s public defense system collapsed, resulting in hundreds of dismissals and a loss of public confidence. After investigating, the American Bar Association noted that Oregon employed 31 percent of the public defense lawyers needed to adequately represent the accused. A similar study in New Mexico found that it had only a third of the public defenders it needed. In response, New Mexico began a five-year statewide plan to hire public defenders. Washington too must address systemic changes in the practice of law and revise our standards consistent with new national norms.

The work to improve public defense cannot be born solely by public defenders. The blueprint to effect change will take effort, ingenuity, time and money. Local governments should review compensation and resources to public defense attorneys and staff to assure parity with government legal professionals. State government should supplement the cost to local jurisdictions. Bills like Senate Bill 5415 and Senate Bill 5046 could provide State funding for services historically paid for by local governments.

When the public defense system fails, we become purveyors of an injustice that almost solely impacts the accused. The accused are disproportionately economically disadvantaged, BIPOC, and suffering from acute trauma or illness. Poor representation results in lengthier prison sentences and the incarceration of the innocent.

We must strive to create a just legal system. It involves out-of-the-box solutions to crime, like restorative justice that amplify the voices of affected people, and gradual divestments from the legal system to health care and the social safety net. But for now, the work continues by investing in public defense to avoid the kind of crisis felt in Oregon.

Now 60 years after Clarence Earl Gideon’s successful petition to the Supreme Court, Washingtonians can be proud of our achievements in providing public defense services through changing times. But we cannot rest on those laurels as new challenges confront us. Those challenges demand our collective action.

State Rep. Tarra Simmons, D-Bremerton, represents the 23rd Legislative District and is founding director of the Civil Survival. Jason Schwarz is director of the Snohomish County Office of Public Defense and chair of the Washington State Bar Association Council on Public Defense.

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